tv [untitled] August 13, 2010 3:30pm-4:00pm PST
weigh can back them -- we can back them up with documents and prove everything. even the owner made misstatements, even misstatements this evening and we can prove it. if you want justice and to protect the people, give her a rehearing. it won't take long. thank you very much. >> any other public comments? seeing none, commissioners, the matter is submitted. >> commissioners, in reading the brief provided by polenza for the rehearing, i find some issues relating to constitutional rights with respect to this particular case, i sense and see nothing that is new that would impact my vote on this case.
>> i think arguments relating to due process and free speech are always compeling to me. however, i would have to agree with commissioner fong that there is no new evidence, and i'm not sure necessarily what a rehearing would give to us at this time because even the false statements are a misrepresentation or inaccuracies that were put forward and addressed today, do not seem material to me. so i would concur and deny. >> someone wiser than myself would leave this alone but i don't feel particularly wise tonight. it's ironic mr. harts would talk about what the permit holder did
under oath and when everyone in the room who intended to testify tonight stood up to take that oath, he chose to stay seated. but i agree with what has been said by the other commissioners. >> in looking at the papers, the only issue that did cause me concern was that the apellant had intended to be represented by counsel and is now telling us that counsel was not available at the hearing. i conet recall, however, that issue was raised during the previous evening and we hear he's a trust lawyer. having said that, i know it is difficult to show up when you think you're going to be represented by counsel and counsel is ill.
in the end, though, this is an illegal deck. there was a lot of testimony. it was really not ever clear to us what were those critical missing documents. and i still think we made the right decision. but, again, because of the situation raised by the inability to have counsel, i would be inclined to grant the rehearing. >> i would agree with you on that. president peterson had the apellant, or in this case qut of her rehearing at the other hearing prior to the proceeding ask for a continuance f she did, i have forgotten that. so i'm going to ask for the record, did she ask for a continuance? >> no. >> then to raise that issue now i feel is totally unreasonable and nonmeritorious. >> i'm going to move to deny the rehearing request.
>> if you could call the roll, please. >> we have a motion to deny this request for rehearing. on that motion, commhis request for rehearing. on that motion, commissioner wong? >> aye. >> president peterson? >> no. >> commissioner garcia? >> aye. >> vice president absent. the vote is 3-1 to deny qut for hearing. it is denied and notice of decision and order shall issue. >> thank you. we can move on to item number five. if you can call that item, please. >> calling item five, appeal number 07-152, woo versus department of building inspection. property at 1734 to 1740 mason street. it's a protest of the issuance on august 23rd, 2007 to the kwon mason family limited partnership of a permit to alter a building.
the public hearings were held in close on july 16, 2008 and july 29, 2009, and matter was continued to allow the pellants to remain in the subj continued to allow the pellants to remain in the subject illegal unit and with status reports due from both parties in july 2010. >> are you -- did you confirm that the translator is here? >> yes, miss dorothy wong, certified cantonese interpreter is here. apellant is here. >> commissioners, just to refresh your recollection, this is a case that came before the board previously. there was a concern about an illegal unit and the board continued the matter. this is the second year in which the matter is coming back before the board just to confirm that the tenants in that unit are still actually tenants in that unit. >> before we proceed, i'll have to translate. >> swear in. >> i have to swear in miss wong. >> ok.
president peter sornings how many minutes would you like to give each party to speak, three minutes? >> subject to swearing in right now. do you solemnly swear or affirm you will translate from cantonese to english and english to cantonese accurately, effectively and to the best of your ability? >> yes, i do. >> thank you. >> so we will hear first from -- translator: gentlemen and judges, i just want to tell you that i continuing living at the same address, which is 1734, that address.
>> thank you, we wanted to confirm that. >> thank you. >> thank you, good luck. >> sir, are you the permit holder? >> yes, i'm bill kwan of the kwan basin family limited partnership and permit holder and i also could attest to they are still living there. >> thank you. >> thank you. sir, any public comment on this item? any departmental comment? commissioners, the matter is back before you. you can require -- request that they return in another year or you might consider sending this to the call of the chair. >> maybe i'll start this one. i think we had some concerns in previous years but i believe this is the second time the tenant has returned. so i think seeing them again, that all is well, that i would
be comfortable with returning this to the call of the chair and not asking the tenant to return to give the status report. >> is that a motion? >> it's a motion. >> president peterson, should we indicate you would like the matter returned to the active calendar at a point in which tcher no longer tenants in that unit, would that be the best -- >> yes. >> just to clarify for the record. thank you. >> i have a question for clarification, how will we know they are no longer tenants? >> i will contact them annually. >> ok. >> just for the record, we've already made certain through d.b.i. that there are no life safety issues in this particular unit, and so that is not part of the consideration. >> and just to make one more
clarification, even though i will make phone calls annually or some from the board's office, if there is a vacancy, there's spinet to inform the board. >> i believe the motion is then from president peterson to continue this matter to the call of the chair. the board's indefinite calendar. on that motion, commissioner? >> aye. >> vice president absent. commissioner garcia? >> aye. >> and commissioner won? >> aye. >> thank you. the vote is 4-o the matter is continued to the call of chair. the board is in definite agenda. thank you. >> thank you. we can move on to item number six when you're ready to call that item, please. >> item number 6, 10029, doing business as ampm, versus
department of public health, 5898 mission street. appeal of a 45-day suspension of a tobacco product sales establishment permit imposed tongue march 10, 2010. reason for suspension, selling tobacco products to minors and its director case's fd-1014. >> thank you. are you mr. azor? i wanted to make sure you are here. we will hear from the department. >> good evening commissioners and members of the board. i represent the department of public health on the matter of ampm market. and i believe the department is doing business as oofment mpm -- ampm market on mission street in san francisco, violating the san francisco health code 1009.68 under the california penal code
section 008 where he has a minor decoy in january 2010. i would like to emphasize this incident is the second time that a san francisco police department has cited a store clerk as doing business as ampm for selling cigarettes to a minor. political sale on march 28th, 2009 with the apellant retiring the photos. in this very incident they're in the police department monetary action of 2010. the minor decoy purchased a pack of cigarettes from the clerk, mr. samuel arias, an agent of the apellant.
he did ask the minor for his identification and he told the cigarettes to the minor anyway. the orchestrater with the undercover minor at that time approached him, identified himself as the police officer and provide the city money, and issue the citation to the clerk be and assigned the case to d.p.h. in accordance with 1009.678, the department of public health ordered suspension of the department on later tobacco sales for a period of four to five days. he is appealing that decision. it is what's emphasized in here that station 1009.66 allow the department to spend the permit
for tobacco sales for up to six months for second offense. that within 12 months of the first offense. so within five days, it's a very reasonable amount of time. in his argument, the pellant stated some were in arrears, his agent, sold a secret to the minor decoy or although he asked for the minor's identification. the apellant said also that he trained him with safeguards built into the cash register to present sales of cigarettes to minors. and finally he also stated that it was unsfare for the owner to be liable for his employee's mistake. well, the employee was acting as the apellant's agent. they have proven to be very inadequate in our judgment.
he knows fully well that they have decided this before. before the five-day suspension, we strongly f before the five-day suspension, we strongly feel that it's very, very reasonable and the apellant is responsible for the action of anyone acting on his behalf. the department especially asks that the board denies and uphold the 45 days suspension. thank you. >> thank you. we can, when you're ready, we're ready for you. you have seven minutes. >> good evening, commissioners. thank you for your time. i have a couple -- >> your name, sir? >> i have a couple slips.
i didn't think there were so many commissioners here, of how our system works. >> use the overhead. >> use the overhead? yes. >> i feel that we are victims of poor employee's judgment call and it could be maybe some way to get us back or something. we real deloipt know and we feel we're victims and it's properly unfair. when you train an employee, we sell countless hours that he doesn't sell to minors and there's no profits really in cigarettes. there's no intention or benefit to sell to a minor. in this register, this is how the register starts. a blank screen, you scan the cigarette. you scan the cigarette.
first window that pops up -- first window that pops is the precaution sign. right up here there's a date. >> you need to slide it. i don't think we can see where you're pointing to. >> i have to get a boom mic. >> sorry. >> right here it tells you, i did this today, tells you 8/12/1992. is he born before that date? that's the first precaution. that's the first precaution. mr. samuel has to check the i.d. at that point to continue seeing if the guy is of legal age. i have a picture of him looking at the i.d. he's glancing at it. he's staring at it. there's another picture at a different camera angle, and it
shows you it's very hard but i'm trying to point out to the screen that this screen right now is the same screen ha he has. where it tells you before, is he where it tells you before, is he born before this date? after this, you press the date, you say ok. you press the day, you press ok and the cigarette gets sold or registered and you will see on the top screen, marlboro meth thols. that's how they are scanned. here's a bigger view. after that you press total. and you pick the way you want to
tender this sale, either cash or debit. that's the only options we have. now, we did everything we possibly could to train them. we have signs on the register. still not -- you need i.d. under 35, even if he's under 35, you need i.d. we have signs on the window. we have signs on the other window or front door. more than that, i don't know whey can do to train them, train employees. the guy -- i know he's literate because he has a real estate degree. he has a real estate associate license. so he knows about city ordinance. he knows about city laws. so we can't say he doesn't read english. he doesn't know about dates. he doesn't know about time frames. other than, that i become a victim of just an plomey's
careless mistake -- an plomey's careless mistake. second thing is the officer that's under cover never came in as part of the police routine to identify themself that's i bought the cigarettes from you and supposed to show the i.d. i believe again. that never happened. they just submitted him with a ticket. other than that, i really don't know what i can do to train other employees that don't have that problem. they have less english and less skills than him and they seem to ask every person, look at the i.d.'s. i also warn them, if you don't feel the guy is trustworthy, don't sell it. it's not going to hurt me. if the guy looks young and the i.d. looks correct, don't sell it. dwonet need it. we don't need it. other than that, i can't really train more. i also wanted to say it causes us a big financial burden, the
45-day penalty. we have an income-to-death ratio that's very high. it causes us to lose our customer base, which affects everything. we have 14 employees and it's a 24-hour site. and so the restrictions will cause us more obligations that we're not able to handle. my mother would like to continue sharing something. and thank you for your time. >> good evening. what i want to say is like in this employee, it took me like six months, we will not leave somebody by himself without six months of training. he signed with our business to agree on it before they start working.
and we don't put one person, we put two people. and i slept extra an hour or two, and that's what in mistake happened. we trust this guy. he's been working with us for a while. he was raised in an orphanage. he didn't have no family and he has children now and he has a family and he's a christian. he's a real estate, he's been honored to have been good and he's very, very unique and trying to do perfect. he do everything perfect. what he told me, nancy, i'm sorry. i seen it 1984. he just made an innocent mistake. ok, please, what can i do for him? i need to you understand my situation. why should i be liable for him? he did the mistake. what can we do. we will not be ten people for at
least six months before i put somebody in the cash by himself. so it's she, very hard to have people to trust people. this is our life and our business. we are go through tough time. every tam, every license we pay has been up by you know how much, a lot. you know more than me on this. >> thank you. >> having a hard time to meet our expenses and i have employees, 14 employees that they have family and that support themselves from the business. thank you very much. >> thank you. >> thank you. is there any public comment on this item? seeing none, dr. ohjo, you have three minutes of rebuttal. >> commissioners, i have no reason to believe the declaration made by the police officer when he said in his declaration that i approached and identified myself as a police officer. i recall the city funds from him
and returned the change. i then cited him for selling tobacco to a minor. i believe my police officer i think made by the apellant is not accurate. as far as the sale of cigarettes, i empathize with the pellen's statement it will cost him financial hardship. the department considers that very well as i said four, five months or six months recommended only 45 days. i think 45 days is reasonable. we respectively ask the board to do the five days as was recommended.
we cannot teach the operator have to operate their businesses. we have gone out of our way using the tobacco free project to educate all of these operators. i think all operators to sell cigarettes should be knowledgeable of the law. this is not the first time. thank you. president peterson: thank you. we can hear form you. you have three minutes. >> that it does not go out with a misdemeanor, he goes out with a felony and a $1,500 fine, and
with i think a special training program, there was more onus on the business owner in this situation. in this situation, in the first defense, the reason we did not fight it also is that they did not know how to approach this, so they were scared, and the second time, we figured we had to do something. we felt it was unfair. thank you. commissioner garcia: go ahead, commissioner fung, the commissioner fung: this employee was not the same police
department? >> no. commissioner fung: his statement was that he was never asked to provide id. commissioner garcia: sir, you raise the issue that the pleas of mr. did not commit and identify himself. pecan you are satisfied that an illegal sale took place, right? >> no. commissioner garcia: so you dispute that? >> all we know is that young individual should have walked in and said, "i saw the cigarettes." were marked. that is what happened. >> that would indicate, once he found that, it was pre-
oi$rxdñññiv÷ñi yes, but it doem that the person who came in, the decoy, was the same decoy with the same idea, or was it somebody who was just -- commissioner garcia: i am not "rsaying it is material. %q%qi the first violation and the second? >> before, maybe mentioned it two or three times a day. now, it is every sale. if you do not see i.d., i to say i am sorry.
a lot of people come from a apartments or across the street, and we have a lot of customers that just by the same product three times a day, and we tell them, "i am sorry. we need to see your id. as you know, you cannot teach someone to read. but in our case, everybody reads, everyone has some kind of -- president peterson wrot: you understand that when you run a business, you are liable for the employees' conduct. >> to the point where they were underage and they willi&&¥u sold -- the state or the city of
san francisco gave him only a misdemeanor. maybe2if heñr gave in -- they e him a felony, they would think twice, or b or wind. president petersoncj5: i undersd -- >> nothing at all. he is not a blade, but we are blamed. we do not give him the cash right away. to leave him with the cash by himself. 5ethe first time we had that issue, it was my daughter's engagement, and we were busy,